Trademark and Copyright Law

Because of the value of even the simplest phrase, celebrities today are utilizing copyright and trademark law to protect their intellectual rights in instances rarely before noticed. It is Copyright and Trademark Law which requires their lawyers to send cease and desist letters to unsuspecting entrepreneurs. A balance needs to be restored so celebrities can proceed against large scale pirates even if they don’t aggressively seek to protect their intellectual property rights in every case.

Recently Publicized Trademark and Copyright Actions by Attorneys for Celebrities

Individuals and small businesses have recently been surprised to receive cease and desist letters from entertainers like Taylor Swift and Katy Perry for everything from TaylorSwift song lyrics on a coffee cup to a 3D print of the left shark in Katy Perry’s Super Bowl performance. So what’s up with that?

It’s been said that entertainers are now blurring the lines between copyright, trademark and patent law simply to make more money or to prevent others from making money off of them. However, there actually is precedent for making claims that a musician’s lyrics are protected under trademark law and that other images created by a performer and likewise associated with that entertainer are protected under copyright law.

Trademark Law

The cease and desist letter sent by Taylor Swift’s attorneys to prevent her lyrics from being printed on coffee cups sold to the public is an example of how entertainers today are seeking to protect their work from being infringed by others under trademark law.

It would be difficult today for any lyricist or musician to claim that they discovered, invented or created the grouping of any few words in a song title or the song’s lyrics for the very first time and that no one ever before them had come along to do so. Although at some point, someone must have said each phrase in any language for the very first time, it’s doubtful they ever became so well known for having used the phrase that others would immediately associate the phrase with that person.

Today, while the lyrics of a songwriter would be a valid work that could be copyrighted so as to entitle the musician to bring suit for copyright infringement against anyone using them in a copyrightable work themselves, with the exception of the fair use doctrine (which is an entire subject on its own) for slight uses, the average person on the street would not expect that the lyrics could be trademarked so as to prevent the use of even a one-line lyric on a coffee cup. But they can. They can be trademarked as well as copyrighted. So what is going on here?

The theory behind an assertion that lyrics or a slogan, or a phrase can be trademarked is that the lyrics have become so distinctly associated with the entertainer themself or their song in the case of lyrics, that they have acquired secondary meaning, thus allowing the performer the right to protect the phrase in any type of commerce, such as on coffee cups or other goods.

Is it really worth it to trademark a phrase that you’re associated with? Consider the trademarked phrase, “Let’s Get Ready to Rumble.” It’s been reported that this one simple phrase has generated $400 million to it’s owner, Michael Buffer.

Is such a legal assertion going to hold water for the local street performer or even an emerging artist on a singing competition on television. In nearly every instance, the answer would be no. But for someone of Taylor Swift’s stature, or Katy Perry’s or the Beatles? Yes.

But why should it be necessary for such artists who are most assuredly making more money than we can imagine need to prevent a small entrepreneur from making a small amount of money from coffee cups with a songwriter’s lyrics on them? Because trademark law in the U.S. requires them to do just that if they want to protect their works.

Trademark law require a quick response from the owner of a work in which they assert ownership to prevent the unauthorized use of their work. This is normally achieved by use of a “cease and desist” letter to the alleged infringer of their work. It’s not a lawsuit, but it’s a none-too-polite way of warning the alleged infringer that if they don’t stop using the person’s work in commerce, a lawsuit will follow, which can be far more expensive to defend in most cases, with the risk of a judgement for damages, than stopping what it is they’re doing that has brought the ire of the work’s owner, in this case the lyricist or performer.

The typical cease and desist letter, whether it’s used to stop an alleged trademark infringement or an alleged copyright infringement, warns the alleged infringer that their continued use or sale of the alleged infringing products may subject them to a judgement for actual damages, statutory damages, and punitive damages as well as immediate and permanent injunctive relief if they are found to have infringed the owner’s copyright or trademark. What such a letter also fails to mention, is that the attorney fees and costs in defending such a lawsuit may be so expensive as to even force them into bankruptcy.

Even if the claim that’s made by the attorneys for the artist in a cease and desist letter is bogus, specious at best, in most cases it simply isn’t worth it for the individual or a small business to wage the fight against a deep-pocketed performer just to win a small victory that obtains only the right to sell an item rather than the damages the performer could win for the infringement of their work.

Copyright Law

The cease and desist letter sent by Katy Perry’s lawyers to the owner of an online store selling 3D printed replicas of the left shark in Katy Perry’s Super Bowl performance was based on an assertion by her lawyers that the sale of 3D print of the shark costume were infringing Katy Perry’s rights under U.S. copyright law.

Perhaps to the surprise of Katy Perry’s lawyers, in this case, they received a response from an NYU law professor representing the owner of the online store.

The law professor tweeted that he felt the left shark was not copyrightable because it qualified as a “useful article” which is not protected the same way as an artistic work. The law professor also sent a letter in response to Katy Perry’s lawyers, questioning whether the singer’s lawyers had over-asserted the strength of their client’s rights.

In his letter, the professor wondered what Katy Perry could possibly have to gain from their declared war on the left shark internet meme. He asked why the lawyers for Katy Perry could feel that the costume of a shark is copyrightable in view of the fact, he stated, that the U.S. Copyright Office has made it clear that costumes are not. It should be noted however, that another law professor has also weighed in on the subject stating that an animal costume can be copyrighted, so long as it is not generic.

Regardless, the law professor representing the online store owner made it clear that his client just wanted to go back to his business and would be grateful if Katy Perry’s lawyers would just back off. As the law professor said, going ahead with a dubious copyright claim would not benefit Katy Perry. He also questioned whether the NFL rather than Katy Perry had ownership of any copyright interest in the costume.

But indeed, if Katy Perry did design the costume or had a designer transfer their copyright interest to her, and if she felt she might use it in future shows and possibly even sell replicas herself at concerts, even if the NFL had control over the content of the Super Bowl halftime show, this is what copyright law also requires of anyone owning a copyright - a quick assertion of their rights upon learning of any infringement of them.

To a performer in today’s spotlight across all mediums of the universe which can be very bright indeed, the performer’s intellectual property is their most valuable asset. In 1985, Michael Jackson bought the publishing rights to most of the Beatles songs for a mere $47.5 million. Today this amount looks ridiculously small, and in fact it was even then. The purchase of the Beatles catalogue meant that Jackson was free to license any song previously owned by the former music publishing arm of The Beatles to any brand he chose.

Jackson was later able to sell his rights to Sony for $95 million and still acquire half ownership in Sony/ATV Publishing as well, a company which today is worth billions. (ATV had previously purchased the Beatles catalogue from Northern Songs, the Beatles publishing arm.) Due to a notoriously terrible contract John Lennon and Paul McCartney signed at the start of their career, Northern Songs owned the publishing rights to over 250 Beatles songs, including all of their hits at height of Beatlemania.

The online store owner attempting to sell Katy Perry’s shark costume perhaps summed up the perspective of the small entrepreneur who receives cease and desist letters today with a few choice words. He said it appeared to be easier to deal with world leaders like Kim Jong Un or Chris Christie and that he would go back to making pieces about them and other world leaders (although we’re not sure Chris Christie would qualify as such). His final thought on the subject was more astute - “All this lawyer crap is very stressful.”

Dealing with lawyers preventing a small business person from making a little money can indeed be very stressful. But this is what trademark and copyright law requires of the attorney who has been tasked with protecting every possible intellectual property asset of their client. The lawyer may not like putting the strong arm on a business person just trying to make a living, but for the business person who now has to give up a line of products he or she may have invested some money in producing, and who may have done so without thinking of the consequences when they should have known better, there is considerably more stress felt upon receipt of a lawyer’s cease and desist letter.

While the seller of the coffee cups with Taylor Swift lyrics printed on them and the maker of the 3D prints of the left shark in Katy Perry’s Super Bowl performance may not have anticipated they were infringing anyone’s copyright or trademark interest, neither should Taylor Swift nor Katy Perry be criticized when trademark law and copyright law requires them to have their lawyers do exactly what they did, namely to aggressively protect their clients’ intellectual property rights.     

Is it necessary for a lyricist or songwriter to prevent their lyrics from being sold on any type of item? Under trademark law as it exists today, probably so, if the lyrics are so distinctly associated with the songwriter and performer that they have acquired secondary meaning under the law.

Is it necessary for a performer to prevent others from selling the same costume they create or have someone else create for them to use in a performance? Under copyright law, probably so as well, if the artist wants to retain the exclusive right to use the costume in future performances thus acquiring an even stronger acquired secondary meaning that will allow that artist to copyright the costume and later sell it themselves as a Halloween costume.

If Jimmy Buffet had a Parrothead costume, which for all we know he may have, and he used it in his performances, no one would question his right to have it copyrighted. The name, Parrothead, is already trademarked by Jimmy Buffet and his company, Margaritaville Enterprises, for various products.

Today, however, the brand of a performing artist, sports figure or model is so much bigger than just their music, their achievements on the field or their photos, it’s everything else that allows them to market themselves across all the different platforms available to them today. And that is why too a celebrity must also be careful not to appear to be petty at the expense of the little person.

Unfortunately for the celebrity, in today’s world when their every action and those of their attorneys are publicized, even when they do exactly what is required of them by trademark and copyright law, their actions can appear to be unjustified.

While it may be important to protect one’s intellectual property, because of he importance of their brand’s image, a celebrity would not be wise to sic their lawyers on an autistic little girl’s lemonade stand selling hand drawings of their celebrity client to help pay for her mother’s cancer treatment. And let’s be clear, we know of no such instance having occurred to date and we doubt any celebrity would ever knowingly have their attorneys take such an action.

We should also make it clear that copyright and trademark laws are essential and are crucial to protecting the rights of the creative artist who develops a screenplay or produces a film, writes music or a book or creates a line of clothing or jewelry or anything else due to their talent as artists and creative people against those who would sell pirated copies of their films, produce knock offs of women’s handbags or designs of clothing, or of an artist’s paintings. Our firm, just like any other firm who practices copyright and trademark law will proceed against such a copyright or trademark infringer without a second thought.

But there must obviously be some balance between protecting one’s intellectual property while allowing the little person to sell a product that has only a tangential relationship with a celebrity. What is thus needed is a change in the law that allows both parties to coexist peaceably and which does not, by their coexistence, cause the celebrity to forfeit their intellectual property rights if they choose to allow the little girl at her lemonade stand to sell her drawings without receiving a letter from an attorney.

Perhaps when the copyright and trademark laws are rewritten, that balance and peace between the celebrity and the little guy or girl will be restored while still allowing the creative artist’s lawyers to proceed with all the resources at their disposal against pirates who would seek to profit in large scale off the back of the creative artist.

http://www.hg.org/article.asp?id=34586

No copyright or trademark in Yoga, pranic healing asanas, rules HC

Exclusive rights over yoga and pranic exercises, which are derivatives of ancient technique of yoga in India, cannot be claimed under the Copyright Act, the Delhi High Court has held.

The court made the observations while rejecting the plea of Philippines-based Institute for Inner Studies seeking to restrain some persons from teaching the 'asanas' (postures) claimed to be developed by the founder of the institute.

The court relied upon the position of law on the matter in the US and noted that the court there had denied protection to Yoga asanas in case of Bikram Choudhary who is also teaching modern yoga techniques in the US.

A bench of justice Manmohan Singh also held that the expression 'Pranic Healing' cannot be monopolised as trademark by the institute.

"The expression 'Pranic healing' as on the date of the application for the registration was prima facie non distinctive and was the name of the art or technique of doing exercise which was a facet of Yoga.

"The expression was not capable of distinguishing the services of the plaintiff from others due to its wide spread use in the field dating back from centuries ago," the bench said in its 150-page judgement.

The court delivered the judgement on a petition filed by the Institute, which was established by Late Samson Lim Choachuy, Master Choa Kok Sui, on April 27, 1987 and has trusts in various cities in India and the sub-continent.

The institute had moved the high court seeking prohibitory orders against one Charlotte Anderson and others from practicing pranic healing and conducting courses of the asanas adapted by the Master "without proper guidelines and issuing certificates or using literature" of the Master.

"The trade marks which have secured by the plaintiffs in India are all secured post the year 2000 as is evident from the list.

"If the expression Pranic Healing was the name of the art or technique of Yoga in the year 1906 finding place in the books in the field of Yoga, it prima facie appears to be highly doubtful as to how the expression is either inherently distinctive or for that matter capable of distinguishing the goods of one person from that of another.

"Having not made a truthful statement as to proprietorship of the mark pranic healing, the plaintiffs have secured the registration of the expression from the Registrar of the trade mark without informing about the correct proprietorship of the mark applied for on the date of the application."

 Source:http://ibnlive.in.com/news/no-copyright-or-trademark-in-yoga-pranic-healing-asanas-rules-hc/445376-3.html

An end to trademark grabbing in China

Will the introduction of a new Trademark Law in China address the issue of trademark grabbing by unauthorized Chinese parties, 

At the end of August, the Standing Committee of the National People’s Congress adopted the third amendment to the Trademark Law of the People’s Republic of China, which will enter into force on May 1, 2014.What is the implications of the new law and does it address the concerns of trademark holders as to the rampant instances of trademark grabbing by unauthorized Chinese parties?

Challenges under the current trademark law

The actual trademark law, and the related case law of Chinese civil courts as well as the practice of the relevant administrative bodies in charge of trademark protection in China have clearly failed in preventing and punishing a most common form of trademark infringement in China, namely that of the so called trademark grabbing together with the related fall out of trademark trolls actions against foreign investors in China.

Trademark Grabbing

Under Chinese trademark law, only a registered trademark enjoys protection and the first person or entity to register it becomes its lawful owner, even if that trademark has already been used by others in China. Known as “trademark trolls,” certain Chinese companies or individuals are known to actively follow a strategy of registering intellectual property rights in China that arguably belong to their foreign competitors. Aware of the very strict “first to file” principle, they identify, apply and register trademarks belonging to competitors who have forgotten or not yet taken steps to register them.

The actual law and the related practice of all relevant civil and administrative bodies cannot prevent such occurrences. The usurped right holder’s only actual recourse is that of filing a trademark cancellation action and wait years for the hostile trademark to be cancelled, if this is actually really going to happen. The problem for the rightful trademark owner is that in the meanwhile, any act of manufacturing, selling, importing and offering for sale of his products with that stolen trademark, will constitute an act of infringement. The result: the grabber, aware of this, may file a civil or administrative enforcement, thus damaging the foreign company’s business and reputation. There have been indeed several of such trademark troll cases in China in the last years.

No right to prior use

The current legal system does not recognize any legal right to the prior use the foreign holder has made in China of that trademark before the registration of the same obtained by the usurper. The system does lack indeed a legal structure to balance the possible injustice created by the strict observance of the principle of “first to file”.

Trademark grabbing particularly affects medium and small foreign enterprises in China. Lack of knowledge of the trademark system of this country leads often to ineffective trademark filing policies. The loopholes left by unsystematic trademark filings are cleverly exploited by individuals (professional grabbers), competitors, and by local business partners. The latter may initially even do it in good faith, but may later discover that this is a very good bargaining weapon and a preventive tool in case they decide to leave the partnership and become competitors.

Seen in this perspective, trademark grabbing can indeed cause a business to be prevented or to be forced to leave the Chinese market in consequence to the “legal” loss of its brand and the related goodwill.

What solutions does the new Trademark Law hold?

The fact that trademark grabbing has actually reached levels that negatively affect fair competition and distort the principles backing the first to file system upon which the Chinese trademark law is based, has been now fully acknowledged and concrete changes of policy are now visible in the new trademark law.

The first acknowledgement of the existence of an unfair exploitation and abuse of the rule of first to file is the first time ever embodiment of the principle of good faith/bad faith in the trademark Law. Article 7 of the Trademark Law now expressly provides that the application for registration and use of a trademark shall be based on the principle of good faith. Such principle alone can constitute now a solid legal ground to file a trademark cancellation. Such wasn’t the case in the past, due to the lack of a legal base upon which to support a bad faith registration claim.

Aside from reinforcing the legal grounds for filing cancellations against the grabbed trademarks and speeding up the timing for completion of cancellation procedures, a most important change of policy and an exception to the “first-to-file” principle, is now contained in the new trademark law. For the first time in the history of the trademark law of China, if we exclude the case of unregistered well-known trademark, a right of prior use of a trademark in China is recognized under certain conditions, with a positive fall-out for the rightful owner in cases of trademark grabbing.

Article 59 of the third amendment of the trademark law provides that if someone has used a mark identical or similar to a registered trademark, in respect to identical or similar goods, before the date of filing of the latter trademark, and under the condition that the prior mark has meanwhile obtained a certain degree of reputation in China due to its use, the trademark registrant has no right to prevent the prior user from further employing such mark within the original scope of its use. At most, the trademark registrant may impose to the prior user the addition of an indication of distinction to the prior mark.

The norm goes even further by protecting the prior use of designs and shapes which may later form the body of a registered trademark or 3D mark. According to the same article 59, the exclusive right owner of a registered trademark may not prohibit others from the rightful use of the generic names, models or designs of the goods as included in the registered trademark, including registered 3D marks.

Even if the trademark grabber dared filing an enforcement lawsuit against the prior user, not only he would face the risk of rejection of his claims based on art. 59, but will also be subject to another risk related to the non-use of the stolen trademark. In fact, article 64 of the new trademark law provides that the alleged infringer, in this case the prior user, can raise non-use as a defense in a civil lawsuit for trademark infringement and the plaintiff has the burden to prove that he has used the trademark during the last three years from the date of the lawsuit.

If the Plaintiff fails to prove the use of the trademark as requested, the defendant will be exempted from the payment of any damages. Considering that in force of article 59 the prior user can continue to use its mark within its original scope of use, a lawsuit in such a case would be of no consequence for the prior user. Such situation is actually the most typical in cases of trademark grabbing. Most grabbers will in fact not use the trademark, given that the only purpose of stealing is to prevent the filing and use of the trademark by the foreign prior user.

A welcome addition

These new norms are a welcome addition to the Trademark Law. The prior user will have thus the right to continue to use his unregistered marks in China while attempting the cancellation of the stolen trademarks. This will give to the prior user and rightful owner of that sign to prepare and implement cancellations strategies without stopping his business in China.

At the same time, this norm should also discourage the trademark grabbers, especially the professional ones since they normally just grab marks but do not use them. In this respect, a further restraint from grabbing is provided by the new article 64, especially considering that most grabbers never use their trademarks and with such awareness will likely refrain from civil enforcement.

Sourcehttp://www.globallegalpost.com/global-view/an-end-to-trademark-grabbing-60583530/#.UmtsQXCky9Q

Intellectual Property Rights are a privilege, not a human right

Intellectual Property Rights should be subsumed to human rights, national interests and the preservation of genetic resources

Intellectual property can be defined as the creations of the human mind. Intellectual Property Rights (IPR) are legal rights governing the use of such creations. The inventors are given certain monopoly rights for a specified time, and in return, the details of the innovations are made public. It is generally assumed that IPR helps to encourage invention, innovation and dissemination of knowledge.

The term IPR covers a bundle of rights such as patents, plant breeders' rights, copyrights, trademarks and trade secrets, each with a different purpose and effect. Copyright covers the expression of ideas in writing, music and pictures. Patents cover inventions such as designs for objects or industrial processes. Trademarks are symbols associated with a good, a service, or a company. Trade secrets cover confidential business information. A very recent addition -- plant breeders' rights -- covers the area of production of new seeds and plant varieties.

IPR is nothing more than State-mandated monopolies. The idea behind such rights is that the fundamentals of an invention are made public while the inventor, for a limited period of time, has the exclusive right to make, use, or sell, the invention. Discoverers and inventors are thought to deserve special rewards or privileges because their discoveries and inventions benefit society. The public good is not considered a reward in itself and therefore these incentives to encourage invention or innovation.

Inherent contradiction in IPR

The whole argument regarding IPR is built on a contradiction: that in order to promote the development of ideas, it is necessary to reduce the freedom with which people can use them. One approach to the philosophy of intellectual property that currently dominates the theoretical literature on IPR springs from the position that a person who labours upon resources that are either unowned or ‘held in common' has a natural property right to the fruits of his or her efforts, and that the State has a duty to respect and enforce that natural right.

The earliest patent laws expressed the need to ensure that innovations did not die away with the original inventor. In other words, they were designed to promote disclosure and dissemination of knowledge. However, the systems of both law and practice that emerged were based on physical expression. Thus, what was protected as intellectual property was the expression of an idea, a technological artefact, a piece of music, or a work of literature, etc.

Since it is now possible to convey ideas from one mind to another without ever making them physical, ideas themselves are sought to be given ownership, and not merely their expression. And since it is likewise now possible to create useful tools that never take physical form, there is a move towards patenting abstractions, sequences of virtual events, and mathematical formulae -- the most unreal terrain imaginable.

From inventors to corporations

Central to the projected utility of Intellectual Property Rights is the notion that creation is facilitated by the provision of a temporary monopoly which ensures that the author of a work will be the sole beneficiary of any profits accruing from it. The earliest patent and copyright laws were geared, to an extent, to benefit the individual artisan, or the author of a literary piece or a musical score. But with the institutionalisation of the concept of IPR, individual creators ceased to be the beneficiaries and were replaced by large corporate interests. In practice, today, most creators do not actually gain much benefit from intellectual property. Independent inventors are frequently ignored or exploited. When employees of corporations and governments have an idea worth protecting, it is usually copyrighted or patented by the organisation, not the employee. Since intellectual property can be sold, it is usually large corporate entities that benefit.

The value of intellectual products is not due to the work of a single labourer, or a small group. Intellectual

products are social products. Even in the US and Japan , an enormous part of research is State funded. Therefore, the line between what constitutes ‘basic research' by a company and what it draws from public funded research, is blurred.

Inhibiting research and innovation

Open ideas can be examined, challenged, modified and improved. To turn scientific knowledge into a commodity on the market, arguably inhibits science. There are innumerable examples to show that IPR has been used to suppress innovation. Companies may take out a patent, or buy someone else's patent in order to inhibit others from applying the ideas. For example, as far back as in 1875, the US company AT&T collected patents in order to ensure its monopoly in telephones. It slowed down the introduction of radio for some 20 years. In a similar fashion, General Electric used control of patents to retard the introduction of fluorescent lights, which were a threat to its market of incandescent lights. Trade secrets are another way to suppress technological development. Trade secrets are protected by law but unlike patents they do not have to be published openly.

One of the newest areas to be classified as intellectual property is biological information. US courts have ruled that genetic sequences can be patented, even when the sequences are found ‘in nature', so long as some artificial means are involved in isolating them. Companies are now racing to take out patents on numerous genetic sequences. In some cases, patents have been granted covering all transgenic forms of an entire species, such as soybeans or cotton. One consequence is the severe inhibition of research by non-patent holders. Another consequence is that transnational corporations are patenting genetic materials found in Third World plants and animals so that some Third World peoples actually have to pay to use seeds and other genetic materials that have been freely available to them for centuries.

Distorting research priorities

The pharmaceutical sector is a classic pointer to the dangers of a strong IPR regime. Large pharmaceutical companies have generated super profits through the patenting of top selling drugs. But drugs that sell in the market may have little to do with the actual health needs of the global population for, often, there is nobody to pay for drugs required to treat diseases in the poorest countries. Research and patenting in pharmaceuticals are driven not so much by actual therapeutic needs, but by the need of companies to maintain their super profits at present levels. Simultaneously, new drug development has become more expensive because of more stringent regulatory laws. This is a major reason for the trend towards global mergers of MNCs. As a consequence, we are looking to a new situation, where 10-12 large transnational conglomerates will survive as ‘research based' companies that will be in the business of drug development and patenting. The bulk of drug manufacturing will be done by smaller companies.

Given their monopoly over knowledge, these companies will decide the kind of drugs that will be developed, which are likely to be drugs that can be sold to people with the money to buy them. Thus, on one hand, we have the development of ‘life-style' drugs, like Viagra, which target the illusory ailments of the rich. On the other hand, we have a large number of ‘orphan' drugs, or drugs that can cure life threatening diseases in Asia and Africa , but are not produced because the poor cannot pay for them. Just four per cent of drug research money is devoted to developing new pharmaceuticals specifically for diseases prevalent in developing countries. To put it another way, less than 10% of the $ 56 billion spent each year globally on medical research is aimed at the health problems affecting 90% of the world's population.

A similar situation has been created in the software sector due to monopolies created by software patenting. Microsoft, with its virtual monopoly over software that is used on personal computers has consistently obstructed the development of new products by its competitors.

From victims to aggressors

In the 1980s, the US alleged that international ‘piracy' was costing American industries millions, if not billions, per year. Countries singled out for action were largely developing countries in Asia , South America and Africa.

The US presented the issue as an organised effort by foreign countries, especially the developing countries, to systematically usurp American creativity and technological knowledge. The innocent victims were American companies such as Microsoft, or Walt Disney, or Merck. Gradually the US introduced the concept of unfair trade practices alongside that of alleged IPR violations in countries like India . It was repeatedly said that the lack of strong international intellectual property laws hindered international trade. By this virtual sleight of hand, the US (with the support of Europe and Japan ) introduced IPR as an issue in trade negotiations in the Uruguay Round of GATT (General Agreement on Tariffs and Trade) negotiations in 1986.

The success achieved by the US in making IPR a trade issue, and its subsequent incorporation in the WTO agreement, overturns the very basis of trade negotiations, where, classically, the developing nations are considered victims and special considerations are taken to remedy their problems. In the US version, the roles are reversed. The US is a victim and the developing countries are the hostile aggressors that threaten the very foundation of America , its creativity and ideas.

The rhetoric about ‘piracy' gave the US a justification for interference. The generalisation spread from individual pirates to entire States and occurred with the identification of ‘problem' countries like India . Finally, in a feat that defies all forms of logic, large multinational corporations were portrayed as the victims. Note here how the whole concept of intellectual property has come a full circle -- from the initial notion of the protection of an individual's rights and the notion of disclosure of information, IPR now means protection of the rights of corporations and a bar on the free flow of information.

Developing countries the losers

There is growing recognition that patents and IPR cannot be regulated under a universal standard. Different socio-economic conditions and levels of development require different intellectual property systems. The patent system may entail considerable short-term costs for developing countries, mainly due to administrative costs and problems, with higher prices for medicines and key technological inputs, while long-term benefits seem uncertain and costly to achieve in many nations, particularly for the poorest countries. Moreover, higher standards of patent protection are unlikely to have a positive effect on local innovation, except in those few countries (and sectors) that have reached a certain level of technological development and have the capacity to finance substantial research and development.

Higher standards of IPR protection were implemented in the developed countries only when a threshold level of technological advancement was achieved. For instance, pharmaceutical products were excluded from patent protection in Germany till 1968, in Switzerland till 1977, in Italy till 1978, in Spain and Portugal till 1992, and in Finland till 1995. In countries with a longer history of pharmaceutical product patents, such as Canada , France and the UK , compulsory licensing provisions were quite liberal. India 's pharmaceuticals sector is yet another example of benefiting from a more relaxed patent regime. All these factors should be considered when harmonisation and higher standards of IPR are thrust upon developing countries.

From TRIPS to WIPO

Though the ‘international politics' of intellectual property has mainly taken place at the WTO, new intellectual property standards continue to be set under the auspices of the World Intellectual Property Organisation (WIPO). In this context, the new initiative at WIPO, known as the Patent Agenda, launched in September 2001, may greatly influence the shape of the international intellectual property system. WIPO is one of the specialised agencies of the United Nations system of organisations, with 182 nations as member-states. WIPO's principal objective is to promote the protection of intellectual property throughout the world through cooperation among States, and, where appropriate, in collaboration with other international organisations. It administers 23 international treaties dealing with various aspects of intellectual property protection.

Though WIPO was considered an important institution during the 1980s, due to the lack of uniform standards and a strong enforcement mechanism, key industry players in the US persuaded their government that WIPO had failed to secure appropriate levels of intellectual property protection in other countries. They lobbied to bring the issue of IPR protection within the GATT system. An obvious advantage of GATT vis-à-vis WIPO was the possibility of applying trade sanctions to countries found to be non- compliant.

As expected, developing countries resisted the proposal of negotiating on IPR in the Uruguay Round. However, the US , supported by the European Union (EU), succeeded in its efforts through bilateral dealings and the threat of unilateral retaliatory measures such as under Section 301 of the US Trade and Tariffs Act, as well as promises of concessions in agriculture, textiles and clothing.

The Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement introduced the concept of minimum standards for IPR in diverse areas and placed heavy obligations on national governments. However, there are some ‘flexibilities' available for the design and implementation of the patent regime at the national level. Much of this flexibility now faces the possibility of being eroded or suppressed under the new WIPO Patent Agenda.

Once higher standards were adopted at WIPO, pressure would build up at the WTO to further increase the intellectual property standards for all its members under Article 71 of TRIPS. It should not be forgotten that much of the substantive provisions of TRIPS are drawn from WIPO. Due to the existing international geopolitical situation, it would be extremely difficult to raise IPR standards at the WTO. Hence, the US -- the prime driver of higher IPR standards -- thought it prudent to adopt a two-stage procedure: to raise standards first at WIPO, and then export these higher standards to the WTO.

This is part of the game plan where the US has been preparing the ground for higher IPR standards globally through several bilateral agreements, notably with Jordan, Singapore and Australia, as well as other means such as asking China, or even least developed countries such as Nepal and Cambodia, to join the UPOV (International Union of Plant Variety Protection) Convention as a condition for accession to the WTO. UPOV, incidentally, is an agency that protects the interests of the large seed companies.

It was because of the demands of civil society organisations and progressive movements all over the world, that the US and other developed countries were forced to concede certain flexibilities within the TRIPS framework. In the Doha Ministerial conference, a Development Agenda was accepted which gave a lot of space for politically committed developing countries to implement IPR policies to protect their national interests, especially in relation to pharmaceutical production. The US is now trying to use WIPO as a platform to regain what it lost in Doha.

The battleground therefore has shifted from WTO-TRIPS to WIPO conferences. Recently, in the Inter-sessional Inter-governmental Meeting of WIPO, 14 developing countries led by Argentina and Brazil , who called themselves ‘Friends of Development', submitted a proposal to amend the WIPO Convention and to reform the functioning of WIPO. The essence of the proposal is to make WIPO accept the development needs of developing countries when IPR rules are framed.

Intellectual Property Rights versus human rights

There are a large number of international covenants that are signed by nation states accepting the protection of human rights, the major ones being the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the Universal Declaration on the Human Genome and Human Rights. Also there are international treaties like the Convention on Biological Diversity, and the FAO Treaty on Plant Genetic Resources for Food and Agriculture. These covenants and treaties are formulated to protect human rights and the genetic resources of nation states. It should be stressed that IPR are for limited periods but human rights are inalienable and universal.

Not rights but privileges

IPR should not be implemented so as to violate and infringe upon human rights. IPR should be subsumed to human rights, national interests and the preservation of genetic resources. In fact, intellectual products are basically social products. This should not be forgotten when granting certain ‘rights' to innovators. Therefore, Intellectual Property Rights cannot be considered as ‘rights' as in the case of immutable human rights. In this sense, Intellectual Property Rights are only certain ‘privileges' conferred on individuals or corporate innovators.

http://infochangeindia.org/200801176812/Trade-Development/Intellectual-Property-Rights/Intellectual-Property-Rights-are-a-privilege-not-a-human-right.html